Issue 05-02, November 16, 2005
2004
AGRICULTURAL LAW AND TAXATION BRIEFS
DEPARTMENT OF AGRICULTURAL AND CONSUMER ECONOMICS, UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN
_____________________________________________________________________________________________
NEW RECREATIONAL USE ACT RULES FOR ILLINOIS LANDOWNER LIABILITY:
TWO STEPS FORWARD, ONE STEP BACK
by A. Bryan Endres and D. L. Uchtmann*
Synopsis: Recent amendments to the Illinois Recreational Use Act, effective August 18, 2005,
have reduced the liability risk for Illinois landowners and tenants who, at no charge, allow
others on their lands for hunting and recreational shooting. However, the amendments do not
reduce a landowner’s liability risk if the entrant is allowed on the property for other recreational
purposes like fishing or hiking (not hunting and recreational shooting). In some circumstances,
a landowner’s liability risk is actually increased.
Risk: Is New Legislation Needed?, ILLINOIS
RURAL POLICY DIGEST, Vol. 2, No. 3 (Spring
2004). A link to the article and a complete
description of the legislative proposal is
available – click here. In 2005, the legislature
acted.
Introduction
When is a landowner or tenant liable for the
injuries of someone who enters their land for
recreational purposes with the landowner or
tenant’s permission? The authors attempted to
answer this question in a previous
AGRICULTURAL LAW AND TAXATION BRIEF in
May 2004.
2005 Legislative Amendments
Recreational Use Act
As noted in the previous article, the liability risk
to landowners (“Landowner” includes a tenant
in possession of the land) increased when the
Illinois Supreme Court decided Hall v. Henn,
208 Ill. 2d 325, 802 N.E.2d 797, in December
2003. The Hall v. Henn decision upset the longsettled expectation of many rural landowners by
narrowing the scope of liability protection
available under the Illinois Recreational Use
Act, 745 ILCS 65.
to
the
The Illinois Supreme Court in Hall v. Henn
correctly recognized the importance of
preserving some form of premises liability to
encourage landowners to keep their property in a
reasonably safe condition and to compensate
individuals injured as a result of the landowner’s
negligence or other wrongful acts. On the other
hand, the court’s ruling that landowner
protection under the Recreational Use Act is
available only to those landowners who open
their property to the general public compelled
many landowners to restrict access to all but
their closest friends and relatives.
In sum, after the Hall v. Henn decision the
Illinois Recreational Use Act offered protection
from liability only to those landowners who
opened their property to the general public for
recreational use. The Act no longer protected
landowners who allowed only invited or selected
guests onto their land for recreational purposes.
Many users of rural open-space found their
access to privately-owned land restricted and
their favored recreational activities eliminated or
pushed onto already oversaturated public lands.
Moreover, a vast area of privately-owned land
with high recreational potential remained
underutilized within the state.
Previously, the authors called on the Illinois
legislature to overrule the Hall v. Henn decision
and amend the Recreational Use Act with a goal
of rebalancing the state’s goals of encouraging
the maintenance of safe premises and
encouraging access to land by the general public
for recreational purposes. See Uchtmann &
Endres, Recreational Use of Land & Liability
Accordingly, the 94th Illinois General Assembly
(2005) amended the Recreational Use Act to
address many of the concerns raised by the
Illinois Supreme Court in its Hall v. Henn
decision and rebalance these competing public
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Issue 05-02, November 16, 2005
2004
AGRICULTURAL LAW AND TAXATION BRIEFS
DEPARTMENT OF AGRICULTURAL AND CONSUMER ECONOMICS, UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN
_____________________________________________________________________________________________
policy goals.
Specifically, the legislature
amended three provisions of the Recreational
Use Act discussed in sections (a) – (c) below.
structures, and machinery or equipment
when attached to the realty, but does not
include residential buildings or residential
property.
(a) One Step Forward: Amending the
Legislative Purpose to Clarify that
“Public” Includes “Selected
Individuals”
Although this amendment eliminated previously
available immunity for injuries occurring at the
residences of rural landowners, it encourages all
landowners to exercise reasonable care in
making residential areas safe for permitted
visitors. In addition, the amendment furthers the
original purpose of the Act -- encouraging the
opening of true “open space” for outdoor
activities.
In Hall v. Henn, the Illinois Supreme Court
ruled that the Recreational Use Act applies only
to those landowners who open their property to
the “general public” (i.e., everyone). The
immediate impact of the decision was to deny
landowners the liability protection of the
Recreational Use Act unless they open their land
to every member of the public. The 2005
amendment to the Recreational Use Act
explicitly overruled this interpretation and
established that landowners may limit access to
their property to only selected individuals while
maintaining immunity protection under the Act.
See Illinois Public Act 94-625. See the article
about use of general assembly website here.
(c) One Step Back: Narrowing Landowner
Immunity to Only LegislativelyApproved Recreational Activities
Perhaps the most important change for Illinois’
rural landowners is the amendment to the
definition of “Recreational or Conservation
Purpose.” It is important to note that all
immunity afforded landowners under the
Recreational Use Act is dependent upon the
entrants (i.e., recreational users) engaging in a
statutorily
defined
“Recreational
or
Conservation Purpose” when entering the land.
In other words, if an injured entrant is not
engaging in a recreational or conservation
purpose as defined by the Act, there is no
immunity from negligence-based liability for the
landowner under the Recreational Use Act.
(b) A Second Step Forward: Excluding
Residential Buildings from Liability
Protection
The original 1965 version of the Recreational
Use Act only protected owners of land “located
outside the corporate limits of a city, village, or
incorporated town and not subdivided into
blocks and lots.” The Illinois legislature in the
mid-1980s removed this restriction and thus
opened the Act’s protections to both urban and
rural landowners.
Under the previous version of the Act, and even
after the Hall v. Henn decision, landowners had
only minimal concerns about this requirement.
This is because the statute defined ‘Recreational
or Conservation Purpose” as “any activity
undertaken
for
conservation,
resource
management, exercise, education, relaxation, or
pleasure.”
This broad definition afforded
landowners certainty that if they allowed an
entrant onto the land for a recreational activity, it
was likely to meet the broad statutory definition
of “Recreational or Conservation Purpose” and
the landowner would have the Act’s immunity.
In 2005, the Illinois legislature again amended
the definition of land to preserve the immunity
that was obtained for urban and suburban
landowners in the 1987 amendments, but
excluded all residential buildings regardless of
location. Specifically, the legislature amended
the definition of “Land” in the Act to read as
follows:
(a) “Land” includes roads, water,
watercourses, private ways and buildings,
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Issue 05-02, November 16, 2005
2004
AGRICULTURAL LAW AND TAXATION BRIEFS
DEPARTMENT OF AGRICULTURAL AND CONSUMER ECONOMICS, UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN
_____________________________________________________________________________________________
The 2005 amendments to the act eliminated this
certainty for landowners by drastically reducing
the scope of activities that qualify as a
“Recreational or Conservation Purpose.” In
fact, the legislature amended the definition to
include only “hunting or recreational shooting”
as recreational activities that would provide
landowners’ immunity. In so limiting the
permitted activities, the legislature has stripped
protection from landowners who open their land
for any other recreational, educational or
conservation purpose, e.g., fishing and hiking,
even if the land is opened without restriction to
the “general public.”
OPTION A: LANDS OPEN TO EVERYONE:
After Hall v. Henn, this was the only option
available for landowners who desired to retain
the liability protection of the Recreational Use
Act. This is no longer the case, as the 2005
amendments allow landowners to grant
permission on a selective basis. Individuals that
previously allowed unrestricted use, however,
may no longer be covered because the only
proper recreational purpose is “hunting or
recreational shooting.” Accordingly, Option A –
opening lands to everyone – will no longer
protect the landowner unless the injured person
was engaged in hunting or recreational shooting.
In other words, landowners opening their land
are no longer protected from premises liability
claims unless the injured person was hunting or
engaged in recreational shooting. Landowners
will receive no statutory protection against
claims from injured hikers, fishers, swimmers,
bicyclers, bird watchers, ATV riders, or any
other permitted entrant with the exception of
hunters or sport shooters.
OPTION B: LANDS OPEN TO ALMOST NO
ONE: Many landowners adopted this risk
management strategy after the Hall v. Henn
decision and this may remain a preferred
strategy for many. Landowners, however, after
the 2005 amendments, are now protected by the
Recreational Use Act if the injured person was
engaged in hunting or recreational shooting,
even if most prospective users are denied access.
A Revised Decision-Making Framework for
Rural Landowners and Tenants
OPTION C: LANDS REMAIN OPEN TO
SELECT INDIVIDUALS: A few landowners
after the Hall v. Henn decision continued to
allow select individuals on their land despite the
lack of protection under the Recreational Use
Act. These landowners now, after the 2005
amendments, enjoy the Act’s immunity
protection if the injured person they selectively
allowed onto their property was engaged in
hunting or recreational shooting. Landowners
selectively allowing all other types of
recreational participants, however, will continue
to fall outside the Act’s scope of liability
protection.
The May 2004 Agricultural Law and Taxation
Brief (referenced above and available at this
link), noted that landowners, in the wake of the
Hall v. Henn decision, should reassess, perhaps
in consultation with their legal advisor and
insurance representative, whether they will
continue to make their lands available to others
for recreational purposes. The authors proposed
three options for landowners: (a) open lands to
everyone to retain liability protection of the
Recreational Use Act; (b) deny access to
everyone in order to minimize risk of injuries no
longer covered by the Recreational Use Act; or
(c) open lands to select persons for recreational
activities in spite of increased liability risk.
UNDER ALL OPTIONS: Landowners should
consider liability insurance to manage this risk.
As noted previously by the authors, it may not
be good public policy to force landowners into
this albeit slightly altered by still limited
decision-making framework. Hopefully, the
legislature will, in a future legislative session,
again amend the Recreational Use Act to
The 2005 amendments to the Recreational Use
Act have changed these options and landowners
should again reassess their options for granting
permission for recreational use on their land.
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Issue 05-02, November 16, 2005
2004
AGRICULTURAL LAW AND TAXATION BRIEFS
DEPARTMENT OF AGRICULTURAL AND CONSUMER ECONOMICS, UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN
_____________________________________________________________________________________________
broaden the number of recreational activities
warranting protection under the Act and restore
certainty to landowners who generously open
their rural lands to the public for recreational
and conservation purposes beyond hunting and
recreational shooting.
from liability based on negligence. However,
landowners still remain potentially liable for
injuries caused by the landowner’s negligence if
the injured entrant was on the landowner’s
property to fish or hike or engage in other
recreational activities (except for hunting or
recreational shooting). Also, if landowners
previously opened their lands to the general
public for non-hunting and non-shooting
recreational activity, the liability risk of these
landowners has actually increased because of the
2005 amendments.
Landowners should be
aware of these changes when deciding whether
to allow others to use their lands at no charge for
various recreational activities.
Of course,
landowners should also consider liability
insurance as a tool to manage their risk if
someone were to be injured on their property.
***********************************
*Endres and Uchtmann are faculty members in
the Agricultural Law Group of the Department
of Agricultural and Consumer Economics,
University of Illinois at Urbana-Champaign.
AGRICULTURAL LAW AND TAXATION BRIEFS are
available at www.farmdoc.uiuc.edu/legal.
For a more complete analysis, along with
proposed amendments to the Recreational Use
Act, see A. Bryan Endres & D.L. Uchtmann,
The Latest Twist on the Illinois Recreational
Use of Land and Water Areas Act: Clamping
Down on Landowner Immunities, 29 SOUTHERN
ILLINOIS UNIVERSITY LAW JOURNAL 579-603
(Summer 2005).
Summary
Under the 2005 amendments to the Illinois
Recreational Use Act, effective August 18,
2005, Landowners who selectively allow others
on their lands at no charge to hunt or engage in
recreational shooting now have a lower risk of
being liable if the entrant is injured. The
landowners (including tenants in possession of
land) are now protected in such circumstances
_____________________________________________________________________________________
Under the Illinois Recreational Use Act, should fishing, hiking, and other recreational activities be
treated the same as hunting and recreational shooting? Should public policy encourage landowners to
open their lands for a broad range of recreational activities, not just hunting & recreational shooting?
Effective August 18, 2005 landowners have liability protection under the Act only if the entrant was
allowed on landowner’s property at no charge for hunting or recreational shooting purposes. However,
this limited protection is available even if the landowner permits access to only a few selected persons.
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